What is the Federal Anti-Kickback Law?
The federal anti-kickback law is a criminal statute that prohibits healthcare providers, including physicians and hospitals, from receiving or giving anything of value in exchange for referrals or recommendations of healthcare services paid for by federal healthcare programs such as Medicare, Medicaid, and TRICARE. The major provisions of the federal anti-kickback law in healthcare include:
- Prohibition on kickbacks: The law prohibits anyone from knowingly and willfully soliciting, receiving, offering, or paying any remuneration in exchange for referrals or recommendations of healthcare services.
- Broad scope: The law applies to any arrangement that involves federal healthcare programs, including Medicare and Medicaid, and any item or service that is reimbursed by these programs.
- Intent: The law requires that the intent of the parties involved in the arrangement must be to induce referrals or recommendations of healthcare services in order for the arrangement to be considered a violation of the anti-kickback law.
- Criminal penalties: Violations of the anti-kickback law can result in criminal penalties, including fines of up to $100,000 and imprisonment for up to 10 years.
- Safe harbors: The law provides certain “safe harbor” provisions that describe arrangements that are not considered violations of the anti-kickback law, provided they meet certain conditions. These safe harbors include arrangements for the donation of electronic health records, certain discounts, and warranties.
- Civil penalties: In addition to criminal penalties, the anti-kickback law also allows for civil penalties, including fines, exclusion from federal healthcare programs, and monetary damages.
Overall, the federal anti-kickback law is an important tool for preventing fraud and abuse in the healthcare industry and ensuring that patients receive the best possible care without undue influence from financial considerations.
Why the term “recommend purchasing” in the Anti-Kickback Statute might make it unconstitutional.
Subsection (b)(1)(B) of the statute makes it a crime to for a person to knowingly and willfully solicit or receive any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind in return for, among other things, “recommending purchasing” . . . any good, facility, service, or item for which payment is made by a federal healthcare program. The problem centers around exactly just what “recommend” means as it relates to whom the recommendation is made and the context in which such recommendation is made. To the extent that the statute covers a recommendation made to anyone, it would likely be unconstitutionally vague. Anyone charged with violating the Anti-Kickback Statute needs to carefully evaluate and make every possible constitutional challenge to the statute that has a basis in law.
